Herring Fishermen Reach Settlement With PG&E That Will Force PG&E To Address Massive Historical Contamination In The San Francisco Bay and Waterfront

SAN FRANCISCO, September 28, 2018 – Federal Judge William H. Orrick (N.D. Cal.) entered a consent decree, yesterday evening, between PG&E and the San Francisco Herring Association (“SHFA”), represented by Stuart G. Gross of Gross & Klein LLP. The consent decree resolves claims brought by SFHA, in 2014, under the federal Clean Water Act and Resource Conservation and Recovery Act, as well as California state public nuisance and negligence law, related to contamination of areas offshore of the Marina and Fisherman’s Wharf neighborhoods of San Francisco, where herring spawn.

SFHA alleged that PG&E’s operation of manufactured gas plants (“MGPs”), in the late 1800’s and early 1900’s, at two locations in the present day Marina neighborhood and at one location in the present day Fisherman’s Wharf neighborhood, resulted in the massive contamination of offshore areas with MGP waste and that onshore MGP waste deposits caused continuing deliveries of contaminated groundwater to the Bay. The MGP waste contains high levels of toxic chemicals, including polyaromatic hydrocarbons (“PAHs”), which studies resulting from the Exxon Valdez and Cosco Busan oil spills have shown are particularly toxic to herring eggs and larvae.

The 98-page consent decree has a 10-year term during which PG&E will be required to conduct extensive sampling and monitoring offshore and along the Bay's perimeter at locations, depths, and using methods that the consent decree specifies in detail. The consent decree contains aggressive action trigger levels for both groundwater and offshore porewater and establishes a detailed mechanism of monitoring and enforcement of PG&E's compliance by SHFA.

In addition to requiring PG&E pay for the costs of addressing the contamination, the consent decree requires that PG&E pay: the cost of establishing a panel that will adjudicate SHFA challenges to PG&E’s compliance with the consent decree; SFHA’s fees and costs incurred in the litigation; as well as another $4.9 million in payments. Those $4.9 million in payments include:

  •  $1.8 million, which will be used to permanently retire commercial herring permits, substantially reducing the fishing pressure on the Bay’s herring stock;

  • $1.2 million, which will be used by the Estuary and Ocean Science Center, in Tiburon, to conduct eelgrass restoration and research programs in San Francisco Bay, including a project to study the restoration of eelgrass beds that have been destroyed as the result of illegal boat “anchor-outs” in Richardson Bay, offshore of Sausalito;

  • $1.2 million, which will be used by the California Coastal Conservancy, to advance its project to remove creosote pilings and restore natural habitat at the former Terminal Four wharf in the vicinity of Point San Pablo in Richmond; and

  • $400,000, which will be used to pay SFHA’s costs incurred in monitoring PG&E’s compliance with the consent decree.

SFHA President Matt Ryan observed, “PG&E knew about this contamination for years and did nothing about it, all the while it was harming the herring stock on which fishermen and wildlife depend. This settlement forces PG&E to finally deal with it, while also forcing PG&E to pay for programs that will help the herring stock and the fishermen who have been harmed.”

 SFHA’s attorney Stuart Gross of Gross & Klein commented, “This settlement sends the message that companies who pollute the Bay, no matter how long ago they polluted it or how powerful they are, will be held responsible. San Francisco Bay’s herring fishermen are true stewards of the resources on which their livelihoods depend, and Gross & Klein is honored to have assisted them in this success.” 

Gross & Klein LLP also represents SFHA’s co-plaintiff, who will continue to pursue his claims against PG&E, including those concerning contamination of terrestrial areas of the Marina and Fisherman’s Wharf neighborhoods.

Gross & Klein LLP also represents various homeowners and property owners in the Marina neighborhood, in separate cases concerning contamination of their properties. To the extent those cases have not already been separately resolved, Gross & Klein will continue to pursue those cases.

Herring permit holders interested in learning more about the herring permit retirement program can email a request for information to: Herring.Permit.Retirement.Program@grosskleinlaw.com.

The lawsuit is titled, San Francisco Herring Association v. PG&E, No. 14-4393 (N.D. Cal.).

The Consent Decree is available here.

Tahoe Donner Residents Sue Snow Removers for Almost Decade-Long Snow Removal Price Fixing Conspiracy

TRUCKEE, CALIFORNIA December 21, 2017 - Two Tahoe Donner homeowners have filed a class action that alleges, for almost a decade, Snowtech, Inc. and Waltman Construction, Inc. – which merged, in March 2017, forming Elements Mountain Co. – engaged in a brazen conspiracy to fix the prices of snow removal services sold to residents of Tahoe Donner, one of the nation’s largest homeowner’s association, located in Truckee, CA. As a result of this conspiracy, Tahoe Donner residents allegedly paid artificially inflated prices for snow removal services, for years. 

The Complaint, filed in Nevada County Superior Court, alleges that Snowtech and Waltman would agree, each year, to set the prices charged to Tahoe Donner residents for the upcoming season. They are further alleged to have worked closely to ensure that neither offered Tahoe Donner residents any better snow removal services than the other. 

Included in the body of the complaint are emails allegedly between Snowtech’s Matthew Warren and Waltman’s Jamie Legare (aka Jamie Waltman), in which the agreement to fix prices are memorialized in detail. One such email reads, in part, “Price – we have agreed that the minimum price in TD [Tahoe Donner] will be $625.” Another refers to actions to be taken “in the interest of placating homeowners on pricing” and to “give the perception that there is a little bit of competitive pricing happening in TD [Tahoe Donner].”

As alleged in the complaint, part of the defendants’ scheme to create the false perception of competition was to include “price match guarantees” in solicitations sent to Tahoe Donner residents. As there was no actual competition between these companies, which dominated the market for of snow removal services in Tahoe Donner, the “guarantees” are alleged to be classic examples of false advertising. Because these “guarantees” were also included in these companies’ contracts with residents, the price-fixing conspiracy is alleged to be in breach of these contracts. 

Stuart Gross of Gross & Klein LLP, who represents the plaintiffs and proposed class with co-counsel, stated, “As alleged in the complaint, Snowtech and Waltman explicitly agreed to fix the prices charged to Tahoe Donner residents for snow removal services. That’s illegal, and for good reason. Free competition is a lynch pin of our economic system; and these companies are alleged to have tossed that pin out.” Gross continued, “This was not a case in which companies on the ropes resorted to illegal price-fixing as a last ditch effort to survive. Rather, as alleged in the complaint, the illegal conspiracy was hatched to cynically prevent ‘money from being left on the table.’ Engaging in lawful competition is not leaving money on the table.”     

The Complaint alleges ten claims against Elements, as well as against Jamie Legare, Joanne Waltman, and Matthew Warren, including violations of California’s Cartwright Act – which forbids price-fixing – as well as unfair competition, false advertising, and contract laws. 

The case is captioned: Cramer et al. v. Elements Mountain Co. et al., No. TCU17-6880

A copy of the complaint is included here.

Fifth Lawsuit Challenges Destructive Highway-widening Through Ancient California Redwoods

SAN FRANCISCO Nov. 2, 2017 — Environmental groups and local residents, represented by Stuart Gross of Gross & Klein LLP, again sued the California Department of Transportation for approving a highway-widening project that would needlessly damage or destroy thousand-year-old redwood trees in California’s iconic Richardson Grove State Park along Highway 101 in Humboldt County.

This is the fifth legal challenge to Caltrans’ approval of the controversial “Richardson Grove Operational Improvement Project.” The project would damage the roots of more than 100 of Richardson Grove’s ancient redwoods, including trees up to 3,000 years old, 18 feet in diameter and 300 feet tall. Caltrans has pursued this project solely to incrementally improve passage for oversized commercial trucks, and continues to rely on inadequate environmental review.

“This ancient grove is special and I cannot let those trees die,” said plaintiff Bess Bair, whose grandparents owned the adjacent Hartsook Inn and worked to preserve Richardson Grove. “Caltrans can’t show any science that cutting into their roots won’t kill these redwoods. The local community does not want this project.”

“My great grandfather Henry Devoy entrusted 120 acres of old-growth redwoods here in 1922 at the inception of Richardson Grove,” said plaintiff Trisha Lotus, who is intent on maintaining her family’s legacy to protect Richardson Grove State Park. “That’s why we’re fighting Caltrans’ plan to cut into their roots, which could compromise their health and could kill these trees.”

“People made tremendous sacrifices to protect our state parks and we can’t let Caltrans’ ill-conceived project and hasty decision threaten the wonders of Richardson Grove,” said plaintiff Jeff Hedin of Piercy, Calif. “Caltrans owes the public a robust and thorough discussion of our environmental and safety concerns. They haven’t done that.”

“We need transportation policies and projects that prioritize both environmental and economic sustainability, and truly represent the most cost-effective safety measures,” said plaintiff and Humboldt County business owner David Spreen. “Caltrans’s Highway 101 Richardson Grove project fails on all counts.”

“Caltrans hasn’t changed or improved anything about this project. It’s the same terrible proposal to damage ancient redwoods in our state park with no benefits to the community,” said Jeff Miller of the Center for Biological Diversity. “There’s no compelling traffic or safety reason to destroy these beautiful trees. The project is a non-starter.”

“Caltrans’ priorities are all mixed up,” said Tom Wheeler, executive director of the Environmental Protection Information Center. “Instead of keeping our storm-damaged roads open or fixing the disaster-in-waiting at Last Chance Grade, Caltrans continues to waste taxpayer money to push the disastrous Richardson Grove Project.”

“If Caltrans digs up the roadbed through Richardson Grove, toxic lead left by previous generations will be released into the park and surrounding environment, something Caltrans hasn't yet owned up to,” said Patty Clary of Californians for Alternatives to Toxics. “We can't sit by when so much is at stake with this gem of a park.”

Background

The latest lawsuit challenges Caltrans’ violations of the National Environmental Policy Act, due to inadequate evaluation of the environmental impacts of cutting into tree roots, and the Transportation Act, which requires highway projects with federal funding to minimize harm to natural resources in state parks.

The lawsuit was filed yesterday filed in the U.S. District Court for the Northern District of California by the Center for Biological Diversity, Environmental Protection Information Center, Friends of Del Norte, Californians for Alternatives to Toxics, and longtime local residents Bess Bair, Trisha Lee Lotus, Jeffrey Hedin and David Spreen.

Previous legal challenges had blocked construction and forced Caltrans to rescind all project approvals in 2014. The agency quietly reapproved the project in May 2017. Caltrans claims it has made significant changes but still intends to cut into tree roots, a procedure that would threaten the stability and viability of old-growth redwoods. The conservation groups also filed suit challenging the new approval in state court in June.

Richardson Grove State Park, where tourists often first encounter large redwoods when heading north on Highway 101, is home to one of the last protected stands of accessible old-growth redwood trees in the world. The park has essential habitat for threatened and endangered species such as the northern spotted owl, and its creeks support runs of imperiled salmon and steelhead trout.

Caltrans first proposed the project in 2007, claiming the widening is needed to accommodate large-truck travel. However, Highway 101 through Richardson Grove is already designated for larger trucks and does not have significant safety problems. The agency cannot demonstrate that the project is necessary for safety or would benefit the local economy.

A copy of the complaint is included here.

Lawsuit Challenges Highway Widening Through Ancient California Redwoods, Unnecessary Caltrans Project Would Destroy Iconic Trees in Richardson Grove

EUREKA, Calif.— Environmental groups and local residents, represented by Stuart Gross of Gross & Klein LLP, today sued the California Department of Transportation (Caltrans) for approving a highway-widening project that would damage or destroy 1,000- to 2,000-year-old redwood trees in California’s iconic Richardson Grove State Park, along Highway 101 in Humboldt County.

Today’s lawsuit, filed in Humboldt County Superior Court, challenges the transportation agency’s latest approval of the controversial project. Three previous legal challenges blocked construction and forced Caltrans to rescind all project approvals in 2014. Caltrans quietly reapproved the project last month, purportedly to improve highway access for oversized commercial trucks.

“Caltrans keeps pushing this nonsensical project that would do terrible damage to ancient redwoods in our state park, with no benefits to the community,” said Aruna Prabhala, an attorney at the Center for Biological Diversity. “There’s just no compelling traffic or safety reason to destroy these beautiful trees. The changes Caltrans claims it’s made to the project won’t protect more than 100 giant redwoods from being damaged or killed.”

The “Richardson Grove Operational Improvement Project” would cut into and pave over the roots of more than 100 of Richardson Grove’s ancient redwoods, including trees up to 2,000 years old, 18 feet in diameter and 300 feet tall. Caltrans has pursued this project solely to benefit passage for oversized commercial trucks and continues to rely on inadequate environmental review.

“EPIC is disappointed that Caltrans has continued to push forward, ignoring previous court warnings about the need to honestly evaluate the effects of its road widening on old-growth redwoods,” said Tom Wheeler, executive director and staff attorney at the Environmental Protection Information Center. “Caltrans’ road widening shows no respect for sacred parkland and irreplaceable ancient trees.”

"Caltrans does not seem to get that we the people, by law, have a place at the table when important decisions are made affecting our environment, and in the case of this iconic and beloved grove of ancient redwoods, just how important it is to protect irreplaceable magnificent old trees when decisions made are of such consequences,” said Patty Clary, executive director of Californians for Alternatives to Toxics.

Today’s suit was filed by the Center for Biological Diversity; the Environmental Protection Information Center (EPIC); Californians for Alternatives to Toxics; Friends of Del Norte; and longtime local residents Bess Bair, Trisha Lee Lotus, Jeffrey Hedin and David Spreen. The suit challenges Caltrans’ violations of the California Environmental Quality Act, and inadequate evaluation of environmental impacts, a misleading conclusion that the project would have no significant impact on the environment, and a flawed determination that none of the proposed highway alterations would threaten the stability of any old-growth redwoods.

Background
Richardson Grove State Park, where tourists often first encounter large redwoods when heading north on Highway 101, is home to one of the last protected stands of accessible old-growth redwood trees in the world and is a jewel of the state park system. The park also contains essential habitat for threatened and endangered species such as the northern spotted owl, and its creeks support runs of imperiled salmon and steelhead trout.

Caltrans first proposed the project in 2007, claiming the highway-widening is needed to accommodate large-truck travel. However, Caltrans acknowledges that Highway 101 through Richardson Grove is already designated for larger trucks and does not have significant safety problems. The agency cannot demonstrate that the project is necessary for safety or would benefit the local economy.

There has been substantial local opposition to the project, led by the Save Richardson Grove Coalition, a diverse group of community members including economists, business owners, scientists and Northern California tribes with longstanding ties to the grove. In 2012 a federal court stopped the project, citing numerous errors in Caltrans’ mapping and measurement of affected old-growth redwoods and stating that the agency had been “arbitrary and capricious” in its use of what the court called “faulty data.” In 2014 a California Court of Appeal ordered Caltrans to reevaluate the environmental impacts of the project under state law, finding that it had failed to fully assess impacts on ancient redwoods or provide measures to reduce potentially severe harm to the trees.

Caltrans re-approved the project again and now claims it made changes to better protect old-growth redwood trees, such as impacting fewer trees, less excavation, and less depth of surface pavement.

However, the “changes” to the project do not markedly differ from what the courts previously rejected as inadequate, and Caltrans has not answered the questions and concerns raised about structural damage to redwoods from cutting into their roots.

A copy of the Complaint is included here.

Marina Family Sues PG&E for Contamination of the Their Home - Toxicity Levels Many Thousand Times Higher Than Safe

SAN FRANCISCO, May 9, 2017 – Dalene Bramer and Joe Gabany, who live with their four year old twins in a home in the footprint of a former “manufactured gas plant” or “MGP” located in the Northeast end of the Marina neighborhood, filed a Complaint today, alleging that PG&E is responsible for the contamination of their home with massive levels of lead and cancer-causing polyaromatic hydrocarbons or “PAHs.” 

PG&E, less than a week ago, held a public meeting for Marina residents in which it claimed: “We are seeking to win back the trust of the community. . . Our work to date supports that we do not expect health impacts in the community as a result of the former MGPs.”

However, as alleged in the Complaint, lead levels from MGP wastes in the soil of Dalene and Joe’s home greatly exceed hazardous waste levels and are more than 55 times higher than the level which is known to cause neurological impairment to children. PG&E vigorously sought to prevent the testing for lead in the soils of Dalene and Joe’s home, and told their neighbors, who also have young children, that they’d have to sue PG&E to get it to test for lead.

In addition, PAH levels in the soils are more that 62,800 times than that established by the EPA as increasing a person’s risk of cancer. In other words, long-term exposure to this level of  toxins increases a person’s risk of developing cancer by over 62,800 times. Studies have shown that for people growing-up near PAH contaminated soils, most of this increased risk occurs as a result of exposure during their childhood. 

“The levels of lead and PAHs in our yard and under our home is deeply disturbing,” Dalene Bramer said. “PG&E told me that the MGP wastes did not contain lead and that it was safe for our family to use the backyard.  I did not believe them and only allowed my twins to play in the backyard on two occasions. As soon as I saw the dust flying around them, that was it, no more playing outside. And it’s a good thing, because when we received the test results, it showed that lead levels and PAHs were at the level of hazardous toxic waste.  It’s time for PG&E to own their toxic waste site and do the right thing here.”

Dalene’s husband, Joe Gabany, echoed that sentiment, “We’ve tried working with PG&E for four years. Their strategy is clearly to wear us down so that we accept something that saves them money. We’re not going to do it. This is their contamination, and they need to clean it up.”   

Dalene and Joe’s attorney, Stuart G. Gross of Gross & Klein LLP, described the situation this way, “PG&E’s attitude appears to be that with its size, resources, and influence, it calls the shots, and homeowners need to just accept what it’s offering. That was its plan. However, the law does not give it that leeway.” Gross continued, “It’s unfortunate that Dalene and Joe needed to go to court to force PG&E to meet its obligations. Luckily we still have a system of justice in which a young family can go toe-to-toe with a multi-billion dollar utility.”      

The lawsuit is titled, Bramer, et al. v. PG&E Corporation, et al, No. 17-2678, and alleges claims under Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and various California state laws. It was filed today in the San Francisco Courthouse of the District Court of the Northern District of California.

 A copy of the Complaint is included here.

Stuart Gross Named a 2017 Super Lawyer in Business Litigation by Thompson Reuters

SAN FRANCISCO, February 1, 2017: Thompson Reuters has named Gross & Klein LLP partner Stuart Gross to its list of Super Lawyers in Northern California in the area of Business Litigation. According to Thompson Reuters, the designation of Super Lawyer is given only to attorneys “who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.” Thompson Reuters has named Stuart a Super Lawyer every year since 2013, and designated him a Rising Star each of the previous three years

See Stuart's listing here.

Stuart Gross Quoted in Article on Investor-State Dispute Settlement (“ISDS”)

NEW YORK, August 30, 2016:  Gross & Klein LLP partner Stuart Gross is quoted by Pulitzer Prize winning journalist Chris Hamby, in his article titled “The Billion Dollar Ultimatum” about the use of investor state dispute settlement (“ISDS”) processes by transnational companies to override environmental and socioeconomic laws in host states. The article examines, in particular, threats to initiate ISDS processes, under various investment treaties and Indonesia’s international investment law, used by transnational mining companies to coerce the government of Indonesia into abandoning enforcement of a ban on open-pit mining in protected forests. In 2003, Stuart published an article tilted “Inordinate Chill: BITs, MITs, and Host-State Regulatory Freedom – An Indonesian Case Study,” in the Michigan Journal of International Law, which examined the foregoing events in Indonesia and the legal context that made them possible. Stuart’s article is extensively cited in books and articles concerning international investment law and ISDS.

“The Billion Dollar Ultimatum” by Chris Hamby can be found here.

“Inordinate Chill: BITs, MITs, and Host-State Regulatory Freedom – An Indonesian Case Study" by Stuart Gross can be found here.

Benjamin Klein to Participate in Panel at the Aircraft Owners and Pilots Association Bremerton, WA Fly-In on the FAA’s New Compliance Philosophy

On August 20, 2016, Ben Klein will participate in a panel discussion at the AOPA Bremerton Fly-In entitled, The FAA’s New Compliance Philosophy: What Does It Mean for You?  The panel, which is being facilitated by AOPA Pilot Protection Services, will address the Federal Aviation Administration’s efforts to transition away from using enforcement actions to correct unintentional deviations toward a culture focused on preventing future occurrences through training, education, and national airspace system improvements.  Ben will be joined on the panel by Jared Allen of AOPA, Jeffrey Smith, Manager of the FAA’s Training and Certification Branch, and David May, Manager of Seattle’s Flight Standards District Office.  More information can be found here.

Benjamin Klein to Moderate Panel on FAA Part 16 Proceedings at International Aviation Transportation Safety Bar Association

On April 29, 2016, Benjamin Klein will moderate a panel, to include private practitioners and FAA attorneys, on the Dos and Don’ts of FAA Part 16 Proceedings.  The panel will also discuss current high profile Part 16 proceedings, including those involving East Hampton Airport and Santa Monica Airport. 

For more information visit https://iatsba.org/product/2016-iatsba-spring-conference/

Ninth Circuit Affirms Order Striking Down Discriminatory California Commercial Fishing Laws

SAN FRANCISCO, September 18, 2015 – The United States Court of Appeals for the Ninth Circuit issued an Opinion today affirming a decision from 2013 by Judge Donna Ryu of the Northern District California that struck down four California statutes for unconstitutionally discriminating against nonresident commercial fishermen.

At issue were four statutes enacted by the California Legislature in the 1980s and 1990s: Cal. Fish & Game Code §§ 7852, 7881, 8280.6, and 8550.5. The statutes set the fees charged to nonresidents several times higher than those charged to residents for: commercial fishing licenses (§ 7852); commercial boat registrations (§ 7881); Dungeness Crab vessel permits (§ 8280.6); and herring gill net permits (§ 8550.5).

The table below shows the differences in fees charged in 2013, the last year the discriminatory fees were charged before the District Court’s order:


                                                                                      Resident                               Nonresident
               Commercial Fishing License                        $133.39                                $395.50
               Commercial Boat Registration                     $347.50                                $1,028.25
               Dungeness Crab Vessel Permit                   $280.00                               $551.75
               Herring Gill Net Permit                                 $368.25                               $1,368.75


The discriminatory fees hit nonresident herring fishermen hardest. Most herring fishermen have three herring permits and own their own boats. Thus, in the 2013 herring season, most nonresident fishermen paid a total of $5,390.75 in fees, while their resident competitors paid $1,545.78, a difference of almost $4,000.

The Ninth Circuit affirmed the District Court’s finding that the four statutes violated the Privileges and Immunities Clause of the United States Constitution. The Ninth Circuit agreed that the laws implicated the Clause’s guarantee of the right to earn a living in every State on terms of substantial equality with the residents of the state, and that the State of California had not met its burden to show that the discrimination was justified.

Specifically, in a clear articulation of the standard applicable to cases involving this type of discrimination, the Appeals Court held:

"[A] State may justify a differential fee by showing either that it is closely related to the costs of addressing a burden non-residents uniquely impose or that it approximates the amount in 'taxes which only residents pay' towards the relevant State expenditures from which non-residents also benefit."

The Ninth Circuit agreed that California had failed to meet their burden to justify the challenged discrimination in either of these ways.

When first contacted regarding the decision, class member, long-time commercial herring fisherman, president of the San Francisco Herring Association, and resident of Bellingham, Washington, Matt Ryan stated, “Hot dog!” Matt Ryan and other nonresident commercial herring fishermen have been trying to get California’s discriminatory fees corrected for over twenty years. “This has been a long time coming,” Mr. Ryan continued. “When these fees were first put in place, we told them that they were wrong, but nothing was done about them. It feels good to finally get this fixed.”

Lead attorney for the class of nonresident fishermen on whose behalf the case was brought in May of 2011, Stuart G. Gross or Gross Law, P.C., echoed Mr. Ryan’s sentiments, “nonresident fishermen have been waiting a long time for this result, and we are happy to have helped them achieve it.” Mr. Gross continued, “The import of this decision goes significantly beyond the four statutes directly affected by it. The decision affirms the fundamental right of all Americans to earn a living in any State of this nation free of unjustified discrimination in favor of that State’s residents. This case was fundamentally about fairness, and we’re gratified by the result.”

The lawsuit is titled, Marilley v. Bonham, its case number at the Ninth Circuit is 13-17358, and at the Northern District of California is No. 11-2418-DMR.

The Ninth Circuit's opinion is available here: Marilley v Bonham-Ninth Cir. Opinion.pdf

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